26 PalletCentral • November-December 2018 palletcentral.com
There is also an issue of overlapping protections and how the new
policy will apply to them. The E-Recordkeeping rule, published on
May 12, 2016, added an enforceable provision prohibiting employers
from retaliating against employees for reporting work-related injuries
or illnesses. See 29 C.F.R. § 1904.35(b)(1)(iv). OSHA also made clear,
in that rule (1904.36) and in the 2012 memorandum, that
denying a worker a benefit (e.g., through a safety incentive
program) due to his/her recordable injury or illness
constituted a violation of Section 11(c) of the OSH Act.
While these may seem like redundant protections, there is a
critical distinction. Under Section 11(c), the worker must
affirmatively file a whistleblower complaint with OSHA within 30
days of the discriminatory event, or else the right is waived. If a
Section 11(c) complaint is timely filed, relief is generally limited to
"make whole" remedies including back pay, reinstatement,
restoration of seniority and benefits, and sometimes
compensatory/punitive damages.
SAFETY
if OSHA finds that such discrimination
has occurred, within 180 days of the adverse
treatment of the injured worker, it can issue
a citation to the employer, with a maximum
penalty of $129,336 per affected worker.
